Actually, ISPs seem to want it both ways. In both the US and UK, ISPs routinely argue that they are a mere conduit and that they are protected by safe harbor laws when it comes to monitoring content and copyright violations. But ISPs are also more than happy to stop being a dumb pipe and to start traffic shaping and protocol throttling when high traffic threatens to clog the tubes. (Comcast took pains in its FCC filing this week to point out that many ISPs in the US have admitted to traffic management, and UK ISPs tend to be even more open about the practice.)

What the ISPs don't want to do is become the arbiters of content and copyright. "ISPA firmly believes ISPs should not have the power of judge and jury over the legality, suitability or appropriateness of the content that is contained on their servers," says one of the group's position papers. "ISPs are not qualified, sufficiently authorised or resourced to decide on the legality of all the material on the Internet." They also don't want liability for anything passing across their networks, even when it comes directly from end users' computers.

The ISPs argue that not only should they not be liable as a matter of principle, they are not liable for policing content as a matter of law. The ISPA points to the UK's 2002 E-Commerce Directive, which contains a section helpfully headed "Mere conduit."

ISPs aren't liable for material passing over their networks so long as they 1) didn't initiate the transmission, 2) did not select the recipient of the transmission, and 3) did not modify the transmission. Given this principle, which the ISPs support (as they also do in the US), it appears a change in UK law will be needed to force ISPs to become copyright cops.

Despite their dislike of the idea, it could still become reality. In the US, AT&T has agreed to voluntarily go this route, and the RIAA and MPAA have been leaning on other ISPs to cooperate voluntarily. In the UK, a filtering regime of some sort looks likely to be proposed later this year unless the ISPs and content owners can reach a voluntary agreement of some kind. Mandating such a "three strikes" policy against file-swappers was an idea suggested by the UK's 2006 Gowers Review of intellectual property.

While European courts have recently made it harder for content owners to learn the names of suspected file-swappers, such rulings may actually encourage Big Content to press for filtering instead. Filters—when they work—could stop file-swapping without the hassle of a court case, though tough privacy laws in Europe will force everyone involved to proceed carefully.

Lord Triesman, Parliamentary Undersecretary for Innovation, Universities, and Skills, has been overseeing the proceedings and sounds more than happy to legislate should voluntary negotiations fail. Somewhat ironically, Triesman is a "former radical and communist," according to The Guardian, who was once suspended from the University of Essex for disrupting a talk given by a defense researcher.